In the current economic climate amidst the almost daily announcements of layoffs, foreign national workers are at risk of losing their ability to stay in the U.S. In addition to the impact on temporary visa holders, layoffs also impact individuals in the employment-based green card process, many of whom have been waiting years to obtain a green card.
Below is a summary of the options for temporary visa holders, as well as individuals in the employment-based green card process, who are facing a layoff. In addition, an employer’s responsibilities when terminating foreign national workers is also addressed.
Options For Employees Affected by a Layoff:
H-1B Visa Holders:
H-1B visa holders are authorized to remain in the U.S. for up to 60 days after their last day of employment in H-1B status. During this 60-day grace period, the H-1B employee can look for a new job and employer sponsor. The new employer must then file an H-1B change of employer petition within the 60-day grace period. The H-1B employee is eligible to start working for the new employer upon receipt of the H-1B transfer petition with U.S. Citizenship and Immigration Services (USCIS).
An individual in H-1B status who is unable to find a new job and employer sponsor within the 60-day grace period will need to depart the U.S. before the end of the grace period. If this is not feasible and the H-1B worker needs more time to settle affairs in the U.S., they may file a Form I-539 application to change status from H-1B to B-2 visitor status for a period of up to 6 months. Alternatively, the H-1B employee might be eligible for another nonimmigrant status, such as H-4 status as the spouse of an H-1B visa holder, or O-1 status as an individual with extraordinary ability. Any change of status application must be filed before the end of the 60-day grace period. We recommend avoiding international travel after a layoff and during the grace period, as this could jeopardize eligibility to transfer H-1B status to another employer. We also recommend keeping pay stubs and requesting an employment verification letter as evidence of the last day of employment in H-1B status.
TN Visa Holders:
Like H-1B visa holders, individuals in TN status are authorized to remain in the U.S for up to 60 days after their last day of employment. In order to stay in the U.S. in TN status, a new employer must file a new TN petition on their behalf prior to the end of the 60-day grace period. If this is not feasible, the TN visa holder must depart the U.S. and can apply for a new TN visa at the U.S. Consulate abroad (for citizens of Mexico) or U.S. port of entry (for citizens of Canada). Alternatively, the TN visa holder can file a Form I-539 application to change status to another nonimmigrant status, such as B-2 status as a visitor, H-4 status as the spouse of an H-1B visa holder, or O-1 status as an individual of extraordinary ability.
L-1 Visa Holders:
L-1 employees are authorized to remain in the U.S. for a 60-day grace period after the last day of employment. However, L-1 visa holders do not have the same flexibility to change employers, and must work for a company that is related to the L-1 employer sponsor, such as a parent, subsidiary, or affiliate company. Alternatively, the L-1 visa holder can file a Form I-539 application to change status to another nonimmigrant status, such as B-2 status as a visitor, H-4 status as the spouse of an H-1B visa holder, or O-1 status as an individual of extraordinary ability.
